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TMI Blog2015 (4) TMI 29X X X X Extracts X X X X X X X X Extracts X X X X ..... e aforesaid notification. Consequently the credit earned on the inputs prior to 9th, July, 2004 could not used but remained in balance. Therefore, the applicants sought refund on 07.10.08 of such accumulated credits to the tune of Rs. 23,03,515/- which had remained unutilized in RG-23 Part-II a/c. Assistant Commissioner Kalyan-IV issued a Show Cause Notice vide F.No. V/Refund/Emtex/1793/08 dated 21.04.2009 proposing rejection of it, on the grounds that there is no provision in Central Excise Act, 1944 & rules made there under for refund of unutilized amount of credit lying in balance in RG 23 Part-II a/c, and the claimants have not mentioned under which provision they are entitled for such refund. The original authority vide Order-in-Original No. R-906/09-10 dated 15.10.2009 rejected the refund claim filed by the Applicants. 3 Aggrieved with their Order-in-Original applicant filed appeal before Commissioner (Appeals), who rejected the same 4 Being aggrieved with the impugned Orders-in-Appeal, the applicant has filed these Revision Applications under section 35EE of Central Excise Act, 1944 before Central Government on the foll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refund has to be made in cash, when the assessee goes out of the Modvat Scheme or their unit is closed. In a similar matter of M/s Shree Prakash Textiles, as reported in [ 2004(169) ELT 162 (Tri.-Mum.)], Hon'ble CESTAT Mumbai even went to the extent of accusing the lower authority have overlooked relevant provision of law & remanded back the issue for readjudication. 4.3 Rule 11 (3) is applicable to input laying in stock or in process or is contained in the final product laying in stock, whereas none of them is the instant case. We have the balance credit laying in our RG 23 Part-II a/c, equivalent to the amount of duty paid on inputs which are neither. laying in stock nor in process or contained- in the final product laying in stock. Therefore, the said rule is not applicable in the instant case. 4.4 The law is well settled on the issue long back in 1999 Hon'ble Apex Court of India in the matter of M/s Eicher Motors Ltd. [1999(106) ELT 3(SC)] where it is held that "when on the strength of the rules available certain acts have been done by the parties concerned, incidents following thereto must take place in accordance with the sc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved by any order passed under section 35A, where the order is of the nature referred to in the first proviso to sub-section (1) of section 35B, annul or modify such order : Provided that the Central Government may in its discretion, refuse to admit an application in respect of an order where the amount of duty or fine or penalty, determined by such order does not exceed five thousand rupees. Explanation. - For the purposes of this sub-section, "order passed under section:-35A" includes an order passed under that section before the commencement of section 47 of the Finance Act, 1984 against which an appeal has not been preferred before such commencement and could have been, if the said section had not come into force, preferred after such commencement, to the Appellate Tribunal. (1A) The Commissioner of Central Excise may, if he is of the opinion that an order passed by the Commissioner (Appeals) under section 35A is not legal or proper, direct the proper officer to make an application on his behalf to the Central Government for revision of such order. (2) An application under sub-section (1) shall be made within three months from the date of the communication to the applicant o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct contrary to section 27 of Customs Act. The said judgement is squarely applicable to this case since similar time limit is provided under section 35EE of Central Excise Act, 1944. 8.4 The Hon'ble CESTAT, South Zonal Bench, Chennai in the case of Precision Controls Vs. Commissioner of Central Excise, Chennai 2004 (176) ELT 147 (Tri. Chennai) held that the " Tribunal, acting under provision of central Excise Act, 1944 has no equitable or discretionary jurisdiction to allow a rebate claim hors the limitation provisions of section 11B ibid-under law laid down by Apex Court that the authorities working under central Excise Act, 1944 and Customs Act, 1962 have no power to relax period of limitation under section 11B ibid and section 27 ibid and hence powers of Tribunal too, being one of the authorities acting under. aforesaid acts, equally circumscribed in regard to belated claims section 11B of Central Excise Act, 1944-Rules 12 of earstwhile Central Excise Act, 1944 Rule 18 of the Central Excise Act;-2002. Contextually, in the case of Uttam Steel Ltd, . also the Hon'ble Bombay High Court allowed a belated rebate claim in a writ Petition filed by the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X
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